Kim Davis in Jail; Other Elected Federal Law Breakers Not

UPDATE: MaxRedline has pointed to a great resource on this issue: Law professor Eugene Volokh's analysis in the Washington Post. Read the whole thing. It is very illuminating. But cutting to the chase, here is his conclusion:

So if Kim Davis does indeed go through the state courts, and ask for a modest exemption under the state RFRA — simply to allow her to issue marriage licenses (opposite-sex or same-sex) without her name on them — she might indeed prevail. Rightly or wrongly, under the logic of Title VII’s religious accommodation regime and the RFRA religious accommodation regime, she probably should prevail.

There’s a lot of appeal to the “you take the job, you follow the rules — if you have a religious objection to the rules, quit the job” approach may be. But it’s not the approach that modern American federal employment law has taken, or the approach that the state religious exemption law in Kentucky and many other states has taken.

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Kim Davis

Sean Davis over at the Federalist points out how many federal law breakers in office are still there with no repercussions, while Kim Davis, a Democrat clerk in Kentucky, is in jail. Regarding federal drug laws, immigration laws, and security laws, the Federal government and Federal courts wink at those who defy them.

Colorado, Washington and Oregon elected officials don't have to abide by federal drug laws on marijuana.

Then there are lots and lots of city officials who don't enforce federal immigration laws.

But not a one of these officials have been fined, let alone jailed, by a Federal judge. And they even get federal funds.

Officials who refuse to comply with federal law just because they or their constituents don't want to are okay. But, let a local official refuse to do something for religious convictions on an action that is not even codified in federal legislation (at this point it's just a Supreme Court generic ruling) with no clear requirements or penalties and all hell breaks loose.

The New York Sun editors point out that the U.S. Constitution forbids a religious test for any public office.

Yet the right to the marriage contract is not the only right vouchsafed in the Constitution. There is also the right — just to pick one that is being pressed in this case — to be free of religious tests for public office.

That is the most emphatic statement in the entire American parchment. “No religious test shall ever be required as a qualification to any office or public trust under the United States,” the Constitution says in Article IV. “No . . . ever . . . any.” It’s hard to imagine it being put any clearer. Yet Ms. Davis has been clapped into prison when her claim to protection under the religious tests clause has been heard on but a preliminary basis. Why can’t Rowan County manage to get marriage licenses to all who seek them without forcing the religious county clerk, Kim Davis, to attach her name to them?

We do not suggest this case is easy. But Ms. Davis has been cast into prison despite a law that requires that the government use the least restrictive means whenever it burdens the free exercise of religion. More broadly, wouldn’t all sides feel better were an accommodation to be found? Isn’t it possible for the state of Kentucky to be allowed to find a way to get same sex couples in Rowan and other counties marriage licenses in a speedy and dignified fashion while accommodating a religious clerk? 

As the Sun says, the Supreme Court has required that there be an accommodation for religious belief/practice by requiring a least restrictive means standard (as in the recent Hobby Lobby decision). The import of that is the Federal government must show "that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion." (Burwell v. Hobby Lobby Stores, Inc., pp. 40-45)

The Federal courts have not yet found that all ministers performing state recognized marriages have to perform same sex marriages. In effect those who perform state recognized marriages act as representatives of the state in performing those marriages since the marriages are officially registered with the state. So, they are not much different than a county clerk. There is a least restrictive means out there for a religious exemption. And, of course, not only for people with clear religious beliefs. Most anyone can get ordained in order to perform weddings.

U.S. District Court Judge David Bunning has taken it upon himself to write laws and penalties contrary to the U.S. Constitution which explicitly gives the power of federal legislation only to the U.S. Congress and contrary to U.S. Supreme Court decisions like Burwell v. Hobby Lobby. Though it looks like the dissenters in the Obergefell v. Hodges same sex marriage case (not to mention the majority in the Burwell v. Hobby Lobby case) are not fast tracking what they wrote since none of the justices approved hearing her emergency appeal (an emergency stay requires five justices). But, we'll see what happens when the case is actually presented to the Supreme Court on appeal.

Among the Republican presidential candidates I've leaned toward, Carly Fiorina is backing the jailing of Davis. Strike one. Ben Carson is silent. Ted Cruz is clearly saying jailing Davis is wrong. Good for him.

So, you see, certain local officials who break laws are OK. But, others go directly to jail; do not pass Go; do not collect $200. All animals are equal but some are more equal than others if they agree with the opinions of those in power.

Other information on the case here.